RAMA RAO AND ANR. Vs. V. CHANDRA GOPAL

JUDGEMENT

(1.) THE defendants are the appellants. The 2nd defendant is the mother; the plaintiff and the 1st defendant are her two sons. She has another son who is not a party to the action. The mother and sons effected a partition of the joint family properties under Exhibit A -1 dated 21st July, 1943. Inter alia the partition deed provided that the plaintiff should take the ancestral house in which all the parties were by then residing, and the property was estimated at Rs. 13,000. On such reckoning, the equities between the coparceners were adjusted. It is, however, expressly recited that the parties have taken possession of their respective shares and they should enjoy them absolutely. There is, thus, an absolute and unreserved allocation of the family house to the plaintiff. A translation of Exhibit A -1 was given by the learned Counsel for the appellants and by consent the same was adopted by me. The material portion of Exhibit A -1 which is the basis of the appellants' claim may be reproduced: The living upstairs house is allotted to No. 3 (respondent) on an approximate value of Rs. 13,000. The said house when sold, if it fetches above Rs. 13,000 the excess amount shall be shared equally between Nos. 3 and 4 (respondent and 1st appellant). Similarly if it is sold for less than Rs. 13,000, the deficiency shall be borne equally between them and No. 3 (respondent), will be entitled to Recover a moiety thereof from No. 4 (1st appellant). As No. 3 (respondent) has to pay Rs. 1,760 to No. 1 (2nd appellant) and Rs. 4,25810 No. 4 (1st appellant), the said amounts should be paid after the sale of the house within a period of 5 years. If it is not so paid, the said amount shall any interest at 8 annas per cent per month and No. 3 (respondent) shall pay the same. Till the said payments are made, the said property shall be charged for the amounts so due. Nos. 3 and 4 (respondent and 1st appellant) shall also be entitled to live in the said house for the period of 5 years in lieu of interest. The property was not sold within the period of five years. Nor did plaintiff pay the defendants the sum mentioned within the period. The plaintiff alleges that he and defendants were living together and having a common mess till 1956 and thereafter they began to live separately, but in the same house. On a request by the plaintiff to vacate, the defendants evaded the issue even though the plaintiff promised to pay the amounts payable by him to equalise the shares on the date, when the defendants surrendered possession of the portion of the property in their possession. Since the defendants did not vacate, the plaintiff filed the suit. The defendants contested the suit on the main ground that the plaintiff and the 1st defendant were each entitled to a moiety in the suit house and the ownership of suit property is annexed with an obligation to sell the same and adjust the equities one way or other. On these pleadings the trial Court decreed the suit and an appeal thereon by the defendants was unsuccessful. Hence this second appeal.

(2.) MR . B. V. Viswanatha Ayyar, learned Counsel for the appellants, raised three contentions before me. Firstly, his case is that under Exhibit A -1 the plaintiff was constituted a trustee for the sale of the property, and that Exhibit A -1 initially created a trust, whereunder the property was annexed with an obligation to pay the agreed amounts and a concurrent obligation to sell the same within five years. Secondly, the period of five years is only a directory covenant and non -exercise of the same within that period cannot absolve the plaintiff from his duty to sell the property. Thirdly, the plaintiff is bound to bring the property to sale and then only pay the amounts shown in Exhibit A -1 after the necessary adjustments and not otherwise. He relies on Section 3 of the Trusts Act and A. N. Kutti v. A.N. Ussan AIR1927Mad1134 , in support of his contentions. The learned Counsel for the respondent contends contra and supports the judgment of the lower appellate Court.

(3.) BEFORE adverting to the contentions of Mr. Ayyar, it is necessary to analyse the scope and intent of Exhibit A -1 and particularly the above excerpt. While aliquoting the shares of each of the members of the family and while making a provision for the mother, the parties took particular care to state that the properties allotted to each of the coparceners are to be enjoyed by them and each of them has taken possession of the property allotted to him or her under Exhibit A -1. The Schedule C property in Exhibit A -1 which is the family house, was taken by the plaintiff as and towards his share and he became absolute owner of the same. There is thus an unconditional vesting of the property in the respondent in this appeal. To equalise the shares, the partition deed provided that a sum of Rs. 4,258 should be paid to the 1st appellant and another sum of Rs. 1,760 to the 2nd appellant within five years from the date of execution of Exhibit A -1. Till such period of five years which is the outer limit prescribed for the payment the appellants are entitled to reside in the suit house. The appellants are still living in the house. The respondent has not paid the amounts as stipulated. Exhibit A -1 says that, if the amounts are not paid within the period, the said amounts shall carry interest at 6 per cent per annum and the totality of the claims shall stand charged on the suit house. This is one limb of the excerpt. The other limb is purely optional, the option being with the respondent. It refers to a sale of the suit property if the property is sold and if it fetches more than Rs. 13,000 or less, the amounts agreed to be paid by the respondent shall be readjusted and reckoned proportionately. Thus, there is no obligation annexed to the sale and absolute ownership over the suit property which, in my view, has vested in the respondent. The first contention of Mr. Ayyar can be considered. Section 3 of the Trusts Act defines a " trust